2024 UT App 18
THE UTAH COURT OF APPEALS
ALEJANDRA DE LA CRUZ,
Appellant,
v.
ANGELA EKSTROM,
Appellee.
Opinion
No. 20220702-CA
Filed February 15, 2024
Third District Court, Salt Lake Department
The Honorable Amber M. Mettler
No. 200906776
Eric B. Vogeler, Jeffrey J. Steele, Chase A. Adams,
Justin M. Hosman, and Alyssa J. Wood, Attorneys
for Appellant
Byron G. Martin and Steven M. Edmonds,
Attorneys for Appellee
JUDGE MICHELE M. CHRISTIANSEN FORSTER authored this Opinion,
in which JUDGE RYAN D. TENNEY concurred. JUDGE RYAN M.
HARRIS concurred, with opinion.
CHRISTIANSEN FORSTER, Judge:
¶1 In early 2019, Angela Ekstrom was involved in a car
accident when she collided with Alejandra De La Cruz, who was
injured in the accident. Twenty months later, De La Cruz filed suit
against Ekstrom seeking damages related to the accident. In her
initial damages claim, De La Cruz sought a total of approximately
$11,000, an amount that would cover the costs of her past medical
treatment. A week before the close of fact discovery, however, De
La Cruz served supplemental disclosures, seeking—for the first
time—more than $70,000 in damages for “future special
damages.” In response, Ekstrom asked the district court to
De La Cruz v. Ekstrom
exclude De La Cruz’s supplemental disclosures. The court
granted the motion, and found the disclosures untimely, harmful,
and undertaken without good cause. De La Cruz now appeals,
asserting that the court’s exclusion of the evidence of her claim for
future special damages was an abuse of discretion. For the reasons
discussed, we reject De La Cruz’s arguments and affirm the
court’s ruling.
BACKGROUND
¶2 In February 2019, De La Cruz and Ekstrom were involved
in a car accident. Several days later, De La Cruz sought treatment
from a chiropractor for her injuries sustained in the accident, but
she did not otherwise seek emergency medical care.
¶3 In October 2020, De La Cruz filed suit against Ekstrom,
seeking recovery of damages to compensate her for her injuries.
In her complaint, De La Cruz requested, among other things,
“past, present, and future special damages including medical
expenses, consequential damages, lost wages and future care, if
applicable.” De La Cruz served her initial disclosures in late
December 2020, indicating that her entire special damages claim
consisted of approximately $11,000 for the costs of medical
treatment she had already incurred. During discovery, Ekstrom
asked De La Cruz to identify and describe “every category and
amount of damages [she was] claiming,” together with a
computation of damages. De La Cruz’s response to this request
was to refer Ekstrom “to her initial disclosures and complaint
filed in this matter.”
¶4 In May 2021, Ekstrom deposed De La Cruz. During the
deposition, De La Cruz testified to continued mild shoulder pain.
Later that same month, Ekstrom asked the court to order that De
La Cruz submit to a medical examination pursuant to rule 35 of
the Utah Rules of Civil Procedure, which De La Cruz opposed
because at least some of the injuries she had sustained in the
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De La Cruz v. Ekstrom
accident had resolved. Specifically, in her opposition to the rule
35 motion, De La Cruz claimed that “[i]t is unclear what a physical
examination of a body part that no longer experiences symptoms
related to the collision will do to aid [Ekstrom] in her
investigation.” After hearing arguments on the motion, the
district court ordered De La Cruz to submit to the examination.
After numerous delays, that examination took place in December
2021, conducted by Ekstrom’s retained medical expert. Sometime
before January 2022, De La Cruz had hired her own medical
expert. That expert later evaluated De La Cruz and provided a
report to her at the end of January.
¶5 In early February 2022, Ekstrom produced her rule 35
examination report. Several days later, De La Cruz served
Ekstrom with a supplemental disclosure indicating—for the first
time—that she was seeking “future special damages” for the
“future costs of treatment to be incurred” in connection with
shoulder surgery, estimated to be $73,500. This disclosure did not
identify any documents or witnesses that would support the
claim and stated that “the disclosure is based upon estimations
and will be further detailed through expert discovery.” Then, on
February 22, 2022, the last day of fact discovery, De La Cruz
requested a thirty-day discovery extension so that her expert
could review the rule 35 report and Ekstrom’s deposition
transcript. The district court granted the extension request.
¶6 Two days before the end of the extended discovery period,
De La Cruz filed a second supplemental disclosure claiming
future special damages of $57,591. In support of her updated
future special damages disclosure, De La Cruz filed an expert
disclosure identifying both her medical expert and a life care
planner as retained experts and provided their expert reports.
Ekstrom filed a motion to exclude De La Cruz’s future medical
expense evidence, asserting that De La Cruz had failed to comply
with her pretrial disclosure obligations. In response, De La Cruz
argued that (1) her supplemental disclosures were timely and
sufficient; (2) if the disclosures were untimely, any late disclosure
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De La Cruz v. Ekstrom
was harmless; and (3) she had good cause for any untimely
disclosure.
¶7 After full briefing and oral argument, the district court
ruled in favor of Ekstrom and found De La Cruz’s supplemental
disclosures to be untimely. The court noted that this case
exemplifies
precisely why the Rules require early disclosure of
damages—a party necessarily litigates a case
involving roughly $11,000 in past medical expenses
plus pain and suffering materially differently than a
case worth nearly $70,000 in special damages (plus
pain and suffering), and reasonably so. . . . [A] party
should not have to litigate a case twice.
¶8 In its ruling, the court also examined whether De La Cruz’s
untimely disclosures were harmless. The court determined that
Ekstrom was harmed by De La Cruz’s failure to identify any
future medical expenses early because Ekstrom “created and
executed on a discovery and litigation plan that included taking
written and deposition discovery proportional to the amount at
issue and retaining an expert who is board certified in physical
medicine and rehabilitation, not an orthopedic surgeon.” The
court further concluded that De La Cruz had not shown good
cause for the untimely disclosures, because it was her own delay
in investigating her damages before filing her complaint that
caused the problem:
If a party intends to seek to recover damages that
will require expert testimony, a party is required to
do the investigation necessary in order to satisfy the
requirement of rule 26 [of the Utah Rules of Civil
Procedure], and such investigation might very well
necessitate consulting with an expert early in the
case.
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De La Cruz v. Ekstrom
The court therefore excluded De La Cruz’s future damages-
related evidence. De La Cruz appeals.
ISSUE AND STANDARD OF REVIEW
¶9 The issue in this case is whether the district court exceeded
its discretion in excluding the evidence contained in De La Cruz’s
supplemental damage disclosures based on its determinations
that those disclosures were not timely, that the late disclosure was
not harmless, and that De La Cruz had not shown good cause for
the delay.
¶10 “As a general rule, we grant district courts a great deal of
deference in matters of discovery and review discovery orders for
abuse of discretion.” Dahl v. Dahl, 2015 UT 79, ¶ 63, 459 P.3d 276.
In particular, we review for abuse of discretion district court
rulings regarding timeliness, harmlessness, and good cause. See
Sleepy Holdings LLC v. Mountain West Title, 2016 UT App 62, ¶ 24,
370 P.3d 963; see also Supernova Media, Inc. v. Pia Anderson Dorius
Reynard & Moss, LLC, 2013 UT 7, ¶ 15, 297 P.3d 599 (reviewing a
district court’s timeliness determination for abuse of discretion).
¶11 Ultimately, as long as the court’s decision “was within the
broad range of discretion entrusted to” trial judges, even if “we
think the trial judge made the wrong call” we will affirm because
“it was, in its essence, a discretionary call.” Gunn Hill Dairy Props.,
LLC v. Los Angeles Dep’t of Water & Power, 2015 UT App 261, ¶ 24,
361 P.3d 703 (Orme, J., concurring), cert. denied, 369 P.3d 451 (Utah
2016). It matters not whether “one or more members of this panel
might have handled the matter differently,” see Hansen v. Kurry
Jensen Props. LLC, 2021 UT App 54, ¶ 25, 493 P.3d 1131, but only
whether the decision was “an abuse of discretion,” and thus “we
will reverse only if there is no reasonable basis for the district
court’s decision,” see Berger v. Ogden Reg’l Med. Center, 2020 UT
App 85, ¶ 15, 469 P.3d 1127 (quotation simplified), cert. denied, 474
P.3d 944 (Utah 2020).
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De La Cruz v. Ekstrom
ANALYSIS
¶12 The Utah Rules of Civil Procedure sets forth clearly defined
directions for the discovery process. Rule 26(a)(1)(C) requires the
plaintiff to serve on the other party, “without waiting for a
discovery request, . . . a computation of any damages claimed and
a copy of all discoverable documents or evidentiary material on
which such computation is based.” And rule 26(d)(3) further
elaborates that a “party is not excused from making disclosures
or responses because the party has not completed investigating
the case.”
¶13 Importantly, “[i]f a party fails to disclose or to supplement
timely a disclosure or response to discovery, that party may not
use the undisclosed witness, document, or material at any hearing
or trial unless the failure is harmless or the party shows good
cause for the failure.” Utah. R. Civ. P. 26(d)(4). See also Bodell
Constr. Co. v. Robbins, 2009 UT 52, ¶ 35, 215 P.3d 933. We discuss
in turn the district court’s determinations that De La Cruz’s
supplemental disclosures were untimely, that the late disclosure
harmed Ekstrom, and that De La Cruz had no good cause for the
belated disclosures.
I. Timeliness
¶14 Depending on the circumstances, a disclosure produced a
few days before the close of fact discovery may still not be
considered timely. That is, a district court retains broad discretion
to determine whether a party has not had sufficient time to
complete the investigation of its case or whether filing its future
damage calculations near the end of the fact discovery period was
strategically motivated. See generally Advisory Committee 2011
Amendments to Utah R. Civ. P. 26. “If factual contentions about
the amount of damages require further investigation or discovery,
the party must undertake that investigation as early in the
litigation process as is practicable.” Sleepy Holdings LLC v.
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De La Cruz v. Ekstrom
Mountain West Title, 2016 UT App 62, ¶ 14, 370 P.3d 963 (quotation
simplified).
¶15 “Timeliness is determined under the facts and
circumstances of each particular case, and in the sound discretion
of the court.” Burr v. Koosharem Irrigation Co., 2017 UT App 123,
¶ 11, 402 P.3d 124 (quotation simplified), cert. denied, 406 P.3d 251
(Utah 2017). And in other circumstances it is assessed by using a
number of factors, including “the length of time since the
applicant knew of [her] interest in the case, prejudice to the
existing parties, prejudice to the applicant, and the existence of
any unusual circumstances.” Kane County v. United States, 928 F.3d
877, 890–91 (10th Cir. 2019) (quotation simplified). Notably,
“delay in itself“ does not render a request or disclosure untimely.
Id. (quotation simplified). In general, a request of disclosure will
be considered timely if the litigant “acted diligently once the basis
for relief became available,” and can show that any delay in
seeking relief did not cause undue hardship to the opposing
party.” Menzies v. Galetka, 2006 UT 81, ¶ 65, 150 P.3d 480
(quotation simplified). 1
0F
¶16 Here, it is undisputed that De La Cruz did not disclose the
fact of her future medical damages and the amount or method of
calculating those damages until right before the close of fact
discovery. But De La Cruz knew that her shoulder was still
hurting in May 2021 at the time of her deposition, yet she opposed
Ekstrom’s request for a medical examination around that same
time. De La Cruz also retained and was evaluated by her own
1. We acknowledge the cases we cite here address timeliness in
contexts other than discovery disclosures. Compare Utah R. Civ.
P. 24 (intervention), and id. R. 60 (relief from judgment or order),
with id. R. 26 (general provisions governing disclosure and
discovery). But we find the timeliness determinations in those
other contexts analogous and the analysis persuasive.
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De La Cruz v. Ekstrom
medical expert by the end of January 2022, yet none of that
information was disclosed until months later.
¶17 The district court opined that “[w]hile it [was] true that [De
La Cruz’s] supplemental disclosures were made a few days prior
to the end of fact discovery, the Court [was] not persuaded that
this renders the disclosure timely.” In fact, the court noted that
“[p]rior to the first supplemental disclosure in February 2022, [De
La Cruz] never indicated that she was seeking damages for future
medical expenses.” Yet just “days before the end of fact discovery
and then . . . days before the end of the 30-day extension,” De La
Cruz disclosed that she was seeking an additional “$57,591 in
future medical expenses.” The court determined that De La Cruz’s
“belated disclosure” of the computation of previously unsought
future special damages was untimely because Ekstrom had
already “retained an expert,“ conducted depositions, “and
completed all other discovery . . . deemed necessary based on the
damages previously claimed” by De La Cruz.
¶18 Under the circumstances, we do not perceive an abuse of
discretion in the district court’s determination that De La Cruz’s
disclosures were untimely. Here, the district court exercised its
broad discretion to assess her disclosures of future special
damages as untimely against the backdrop of the “[t]ime, place
and manner requirements relating to discovery” in the case. See
Bennion v. Utah State Board of Oil, Gas & Mining, 675 P.2d 1135,
1144 (Utah 1983). As such, we will not disturb the district court’s
ruling that De La Cruz’s supplemental disclosures were untimely.
II. Harmlessness
¶19 The district court found that De La Cruz’s untimely
disclosures harmed Ekstrom. This is based on the fact that, by the
time De La Cruz disclosed her need for future medical care,
Ekstrom had already “created and executed on a discovery and
litigation plan that included taking written and deposition
discovery proportional to the amount at issue”—which was at
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De La Cruz v. Ekstrom
that point approximately $11,000—“and retaining an expert who
is board certified in physical medicine and rehabilitation, not an
orthopedic surgeon.” Likewise, Ekstrom “did not question” De La
Cruz during her deposition “on any planned future medical
expenses since none were disclosed,” and she “did not subpoena
other witnesses who might be able to offer personal observations
on [De La Cruz’s] physical condition,” such as “supervisor(s) at
her work.” The district court determined that “without a specific
damages claim relating to [future damages], it would be
unreasonable to expect [Ekstrom] to retain an orthopedic surgeon,
ask [De La Cruz] questions about this unasserted claim, or
attempt to depose other witnesses on this topic.” Moreover,
“without an orthopedic surgeon expert, [Ekstrom would] be
hampered in her ability to” “refute [De La Cruz’s] specific
damages claim.” We perceive no abuse of discretion in this
determination.
¶20 When contemplating the question of harmlessness, district
courts should consider “whether the defense was able to
adequately (1) question witnesses, (2) determine the case’s tier
status under the applicable rules of civil procedure,
(3) understand the nature and quantity of the plaintiff’s claimed
damages, and (4) understand the scope and cost of the litigation
pursued.” Chard v. Chard, 2019 UT App 209, ¶ 45, 456 P.3d 776.
For nearly the entirety of the fact discovery period, Ekstrom
understood De La Cruz’s damages claim to be around $11,000 and
made decisions about how much discovery to conduct and what
questions to ask based on that information. De La Cruz’s belated
damages disclosures increased her claimed damages sixfold.
Importantly to the district court, Ekstrom did not have an
opportunity during the fact discovery period to conduct
discovery on De La Cruz’s new damages claims, and in order to
do so, Ekstrom would have had to “litigate [the] case twice,” as—
in the court’s language—“a party necessarily litigates a case
involving roughly $11,000 in past medical expenses plus pain and
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De La Cruz v. Ekstrom
suffering materially differently than a case worth nearly $70,000
in special damages (plus pain and suffering).”
¶21 As the district court provided adequate rationale for the
determination that De La Cruz’s belated disclosures were
harmful, we see no abuse of discretion in the district court’s
decision.
III. Good Cause
¶22 The district court disagreed with De La Cruz’s assertion
that there was good cause for her belated disclosures as she “did
not know for certain about [her own] injuries until receiving the
information found within her expert’s reports.” But even if this
were the case, the court concluded that “such investigation might
very well necessitate consulting with an expert early in the case.”
This is unlike what De La Cruz did when she “delay[ed] in
seeking input on or investigation of any such [future damages]
claim.” See, e.g., Stichting Mayflower Mountain Fonds v. United Park
City Mines Co., 2017 UT 42, ¶¶ 16, 49, 424 P.3d 72 (explaining that
where a party had “waited so long to add [additional] claims and
lacked a good explanation for the delay,” these “new claims . . .
were barred by” the trial court, and that our review of such a
decision is “deferential”); Gunn Hill Dairy Props., LLC v. Los
Angeles Dep’t of Water & Power, 2015 UT App 261, ¶¶ 21, 24, 361
P.3d 703 (Orme, J., concurring) (emphasizing that “standards of
review really do matter” and even where “we think the trial judge
made the wrong call,” it remains “a discretionary call” and so long
as it is “within the broad range of discretion entrusted to [the
judge],” we must affirm), cert. denied, 369 P.3d 451 (Utah 2016).
¶23 De La Cruz failed to persuade the district court that she
had good cause to delay the disclosure that she was seeking
special damages to cover her future medical expenses. And
though some members of this panel may have made a different
call, we find that the district court acted within its discretion when
it determined that De La Cruz did not show good cause for the
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De La Cruz v. Ekstrom
belated supplemental disclosures. Accordingly, we affirm the
district court’s good-cause ruling.
CONCLUSION
¶24 The district court did not abuse its broad discretion when
it determined that De La Cruz’s supplemental disclosures were
not timely, that her delayed disclosures were not harmless, and
that she did not show good cause for the delayed disclosures. As
such, we affirm the court’s exclusion of De La Cruz’s future
special damages evidence as a proper sanction under rule 26(d)(4)
of the Utah Rules of Civil Procedure.
HARRIS, Judge (concurring):
¶25 As the lead opinion explains, district courts enjoy wide
discretion in determining whether, under the circumstances
presented in the case at hand, a party’s disclosures are timely
and—if deemed untimely—whether their tardiness is harmless or
excused by good cause. I agree with my colleagues that the district
court’s determinations here were not outside the scope of its wide
discretion.
¶26 But in my view, the court’s rulings were harsh, and lie
somewhere near the outer boundary of a district court’s discretion
in such matters. All three of the court’s rulings—the ones
regarding timeliness, harmlessness, and good cause—could easily
have gone the other way. I write separately to encourage district
courts to exercise their discretion, in close cases, in ways kinder
and gentler than exercised here, and in ways aimed at resolution
of matters on their merits.
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De La Cruz v. Ekstrom
I
¶27 Utah appellate courts have recently issued a number of
decisions interpreting the discovery disclosure provisions of the
Utah Rules of Civil Procedure. See, e.g., Keystone Ins. Agency, LLC
v. Inside Ins., LLC, 2019 UT 20, 445 P.3d 434; Butler v. Mediaport Ent.
Inc., 2022 UT App 37, 508 P.3d 619; Segota v. Young 180 Co., 2020
UT App 105, 470 P.3d 479. In many of these cases—including our
decision in this case—we have upheld district court orders that
have sanctioned parties for nondisclosure or untimely disclosure,
and sometimes these sanctions have been severe. See Butler, 2022
UT App 37, ¶ 57 (upholding a district court’s order dismissing a
party’s damages claims due to inadequate damages disclosures).
And we have often emphasized the applicable rule’s strong
language that, if a party fails to make a required disclosure, “that
party may not use the undisclosed witness” or evidence at trial
“unless the failure is harmless or the party shows good cause for
the failure.” See Utah R. Civ. P. 26(d)(4).
¶28 In the wake of these recent rulings, there has been some
measure of grumbling, amongst lawyers and trial judges, that the
disclosure rules have become a nest of traps for the unwary
litigant; that defendants file motions alleging inadequate or
untimely disclosures in nearly every case; and that too many cases
are now being resolved by resort to non-merits discovery rulings
rather than by resort to the legal principles governing the
substantive causes of action at issue.
¶29 While there may be a kernel of truth to these complaints, I
instead urge bench and bar to view these recent cases—which
have, by and large, involved affirmances of district court rulings—
simply as sustaining district court discretion in such matters, and
not as an indication of any appellate-level preference for
harshness. In the cases I have authored, I have endeavored to
emphasize the discretionary standard of review governing
discovery cases, noting in particular “that assessment of harm in
this context is a nuanced matter, and that it is sometimes difficult
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De La Cruz v. Ekstrom
to tell if a defendant has really been harmed” by a late or
inadequate disclosure or is, instead, “just feigning harm for the
purposes of trying to get the plaintiff’s damages claims dismissed
on non-merits grounds prior to trial.” See Butler, 2022 UT App 37,
¶ 48. District courts will “almost always have a better vantage
point than we do to make such a call,” and for this reason “we
review a district court’s harmlessness determination for abuse of
discretion.” Id. And in conducting review for abuse of discretion,
the question is not whether we would have done the same thing
had we been in the district court’s shoes; rather, the question is
whether the district court’s chosen remedy constituted an abuse
of its wide discretion in such matters. See id. (noting that the
court’s decision, “while perhaps not the only possible permissible
decision under the circumstances, was not outside the bounds of
the court’s discretion”); see also Segota, 2020 UT App 105, ¶ 22
(affirming the court’s order, even while acknowledging that
“another judge might have determined that the defendants’ harm
could have been remedied in a different way”).
¶30 Because of the lenient standard of review, district courts
possess great power in making decisions regarding discovery,
disclosures, and sanctions; those decisions are statistically quite
likely to be affirmed on appeal. With great power, however,
comes great responsibility. Our decisions giving voice to district
court discretion will make sense, in the long run, only if district
courts elect to exercise that discretion in ways commensurate with
both justice and mercy.
¶31 Specifically, I encourage district courts, in close cases, to
exercise their discretion in favor of hearing cases on their merits.
In so doing, district courts should, in my view, explore creative
solutions that appropriately penalize non-disclosing parties while
still allowing claims to proceed to adjudication on their merits. See
Segota, 2020 UT App 105, ¶ 22 (suggesting that the harm sustained
by the defendant as a result of the plaintiff’s nondisclosure “could
have been remedied” in a way short of dismissal, such as
“through an assessment of attorney fees and costs” against the
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De La Cruz v. Ekstrom
non-disclosing party “imposed in connection with an extension
of” relevant deadlines).
¶32 In this same vein, I encourage attorneys to assist district
courts in facilitating the judicious exercise of this discretion. In
particular, attorneys should not neglect to make “harmlessness”
or “good cause” arguments when appropriate, and in that context
attorneys—especially the ones who made the substandard
disclosures—should propose creative solutions that might serve
to ameliorate the harm caused by the infirm disclosures while still
allowing the relevant issues to move forward on their merits.
II
¶33 In this case, I agree with the lead opinion’s conclusion that
the district court’s rulings were within the broad discretion
afforded it in this context. But in my view, the court would have
been well within its discretion had it come out a different way in
its rulings regarding timeliness/good cause and harmlessness.
¶34 With regard to timeliness and good cause, it bears noting
that De La Cruz’s disclosure occurred before the end of the fact
discovery period. Depending on the situation, it may not
necessarily be dilatory for a party to disclose a new issue just a
few days before the end of fact discovery. Sometimes, of course,
waiting until the eve of the discovery cutoff to make a disclosure
will result in a determination that the disclosure was untimely.
See, e.g., Keystone, 2019 UT 20, ¶ 19 (deeming a disclosure untimely
that was made in “the twilight hours of fact discovery” (quotation
simplified)). But other times, a litigant may discover new facts, for
the first time, near the end of the fact discovery period that form
the basis for a new claim or the expansion of an existing claim; in
that situation, a party’s attempt to inject new material into the case
late in the fact discovery period may not be untimely. See, e.g.,
Evans v. B&E Pace Inv. LLC, 2018 UT App 37, ¶¶ 22–24, 424 P.3d
963, cert. denied, 425 P.3d 803 (Utah 2018).
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¶35 The timeliness/good cause question, in this case, came
down to whether De La Cruz should have been more aware, at an
earlier point in the process, of the possibility that she might need
shoulder surgery. In situations like this, it is important to
remember that personal injury cases are often dynamic and
usually involve human beings in various stages of healing. A
different district judge may have seen the matter differently and
concluded that De La Cruz did not know until relatively late in
the case, and should not reasonably have discovered any sooner,
that she needed future shoulder surgery, a conclusion that in my
view would have been within the court’s discretion on these facts.
¶36 With regard to harmlessness, the court was concerned that
allowing De La Cruz to inject the shoulder surgery issue into the
case at a late stage would have required Ekstrom to “litigate [the]
case twice.” See supra ¶¶ 7, 20. I certainly acknowledge the validity
of this concern; tardy disclosure does often necessitate repetition
of various litigation activities, and such repetition adds to the cost
of the litigation and can, in many cases, constitute real harm.
¶37 But in this case, much of the work that would have been
necessitated by introduction of the shoulder issue into the case
would not have been redundant. For instance, in its ruling the
court noted that Ekstrom—from the beginning and due to the
small amount of damages apparently at issue—made the decision
not to “subpoena other witnesses who might be able to offer
personal observations” about De La Cruz’s physical condition,
including De La Cruz’s work colleagues, and implied that
Ekstrom would be harmed by incurring the costs of that discovery
after De La Cruz’s belated disclosure. But Ekstrom would have
had to do that work even if De La Cruz had disclosed a potential
shoulder issue from the very beginning; discovery that does not
have to be repeated ordinarily should not count in any tally of
repetitive costs. In assessing harm, district courts must take care
to base their decisions only on matters that were actually
harmful—here, matters that really would have been redundant.
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¶38 In this case, some matters would have had to have been
repeated. Certainly, Ekstrom’s expert would have needed to do a
second rule 35 examination, and Ekstrom would have needed to
re-depose De La Cruz. But Ekstrom doesn’t identify any other
redundant activities, and I wonder whether these two
redundancies, standing alone, are enough to render the late
disclosure truly harmful. These two activities could have been
accomplished relatively quickly and would have necessitated
only a short and targeted extension of the fact discovery deadline;
such extensions are usually not, standing alone, prejudicial. And
the court could easily have required De La Cruz, as a sanction for
her less-than-timely disclosure, to shoulder the costs of these two
activities. Such a resolution would have both (a) alleviated all
harm that is apparent to me on these facts, as well as (b) allowed
adjudication of De La Cruz’s new claim on its merits. In my view,
such a resolution would not only have been well within the
court’s discretion, but it would have been an ideal way to resolve
the situation. Before closing the courthouse door entirely to a
party’s claim, courts should explore the possibility of imposing
this sort of creative solution to any “harmfulness” problem
created by a late or inadequate disclosure.
¶39 In sum, I concur in the resolution reached by the lead
opinion, but I do so largely on the strength of the generous
standard of review applicable here: district courts have wide
discretion in these matters, and I agree with the lead opinion that
the court’s ruling here was within—although perhaps near the
edges of—the boundaries of that discretion. But I urge district
courts to exercise that discretion, in close cases, in aid of deciding
cases on their merits, and I caution them to impose punitive
rulings closing the courthouse door to litigants only when such
rulings are truly deserved and only after exploring other less
draconian ways, short of dismissal, of punishing the non-
disclosing party.
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